EXHIBIT 1.1
800,000 SHARES
(Plus 120,000 shares to cover over-allotments, if any)
BCB BANCORP, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
---------------------
September __, 2005
XXXXXX XXXXXXXXXX XXXXX LLC
As Representative of the Several
Underwriters Named in Schedule I Hereto
c/o Xxx Junior, Principal
Xxxxxx Xxxxxxxxxx Xxxxx LLC
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
BCB Bancorp, Inc., a New Jersey-chartered corporation (the "Company")
proposes, subject to the terms and conditions stated herein, to sell to the
several Underwriters named in Schedule I hereto (the "Underwriters), for whom
Xxxxxx Xxxxxxxxxx Xxxxx LLC is serving as representative (the "Representative"),
an aggregate of 800,000 shares (the "Firm Shares") of the Company's common
stock, no par value per share (the "Common Stock"). If the Representative is the
only firm named in Schedule I hereto, then the terms "Underwriters" and
"Representative," as used herein, shall each be deemed to refer to such firm.
In addition, in order to cover over-allotments in the sale of the Firm
Shares, the Underwriters may, at the Underwriters' election and subject to the
terms and conditions stated herein, purchase ratably in proportion to the
amounts set forth opposite their respective names in Schedule I hereto, up to
120,000 additional shares of Common Stock from the Company (such additional
shares of Common Stock, the "Option Shares"). The Firm Shares and the Option
Shares collectively are referred to hereinafter as the "Shares."
The Company, intending to be legally bound, hereby confirms its agreement
with the Underwriter as follows:
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Underwriter that:
(a) The Company has prepared, in conformity with the requirements of
the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Regulations") of the Securities and Exchange Commission (the
"SEC") under the Act in effect at all applicable times, and has filed with the
SEC a registration statement on Form S-1 (File No. ) and one or more
amendments thereto, for the purpose of registering the Shares (or a portion of
the Shares if a "Rule 462(b) Registration Statement," as defined herein, has
been or is to be filed) under the Act. The Company similarly may have prepared
or may prepare an additional registration statement on Form S-1 with respect to
a portion of the Shares pursuant to Rule 462(b) of the Regulations and, if so
prepared or if to be so prepared, such additional registration statement has
been or will be filed pursuant to Rule 462(b) of the Regulations. The term "Rule
462(b) Registration Statement" means such additional registration statement, if
any, filed pursuant to Rule 462(b) of the Regulations, including, without
limitation, all exhibits thereto, the contents of the earlier registration
statement incorporated therein by reference, and any price-related information
included therein, but omitted from the earlier registration statement in
reliance on Rule 430A of the Regulations. Copies of all such registration
statements (or the form thereof in the case of a Rule 462(b) Registration
Statement that has not yet been filed), and any amendments thereto, and all
forms of the related prospectus contained therein, will be delivered to the
Underwriter. Also to be delivered to the Underwriter are:
(i) Any preliminary prospectus included in such registration
statement or filed with the SEC pursuant to Rule 424(a) of the Regulations (the
"Preliminary Prospectus");
(ii) Various parts of such registration statement, including
all exhibits thereto and the information contained in the form of final
prospectus filed with the SEC pursuant to Rule 424(b) of the Regulations and
deemed by virtue of Rule 424 of the Regulations to be part of the registration
statement at the time it was declared effective, each as amended at the time the
registration statement became effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A of the Regulations (collectively hereinafter referred to
as the "Registration Statement"); and
(iii) The final prospectus in the form included in the
registration statement or first filed with the SEC pursuant to Rule 424(b) of
the Regulations, and any amendments or supplements thereto, including the
information (if any) deemed to be part of that prospectus at the time of
effectiveness pursuant to Rule 430A of the Regulations (the "Prospectus").
All references to the registration statement, the preliminary prospectus and the
Prospectus include all documents incorporated therein by reference. If the
Company files a Rule 462(b) Registration Statement, then any reference herein to
the term "Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement.
(b) The Registration Statement has become effective under the Act,
and the SEC has not issued any stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Preliminary
Prospectus, nor has the SEC instituted or threatened to issue any such stop
order, nor is the SEC
2
contemplating instituting proceedings with respect to such an order. No order
preventing or suspending the effectiveness of the Registration Statement or
suspending the use of any Preliminary Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened or contemplated by any court or any federal or state
governmental or regulatory agency or body. No request has been made by any
federal or state governmental or regulatory agency or body to amend or
supplement any Preliminary Prospectus or for additional information.
(c) At its issue date and at each Time of Delivery (as hereinafter
defined), any Preliminary Prospectus:
(i) Contained and will contain all material statements
required to be stated therein in accordance with, and complied or will comply in
all material respects with the requirements of, the Act and the rules and
regulations of the SEC thereunder applicable to a public stock offering by the
Company; and
(ii) Did not and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) At its issue date and at each Time of Delivery, the Prospectus,
as amended or supplemented at any such time:
(i) Will contain all material statements required to be stated
therein in accordance with, and complied or will comply in all material respects
with the requirements of, the Act and the rules and regulations of the SEC
thereunder applicable to a public stock offering by the Company;
(ii) Will not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The foregoing provisions of this paragraph
(d) do not apply to statements or omissions made in the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically for use
therein. It is understood that the statements set forth in the Prospectus in the
section entitled "Underwriting," constitute the only written information
furnished to the Company by or on behalf of any Underwriter specifically for use
in the Prospectus.
(e) Documents filed by the Company with the SEC, at the time they
were filed, complied in all material respects with the requirements of the Act
or the Securities Exchange Act of 1934, as amended ("Exchange Act"), including
without limitation requirements of the Xxxxxxxx-Xxxxx Act of 2002 applicable to
the Company, as the case may be, and the rules adopted thereunder. In addition,
any documents filed with the SEC and incorporated by reference subsequent to the
effectiveness of the Registration Statement shall, when so filed, conform with
the requirements of the Act and the Exchange Act, as applicable, and the rules
adopted thereunder. No documents, when filed with the SEC (or if amendments to
such documents, when such amendment was
3
filed), contained any untrue statement of material fact or omitted to state any
material fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
(f) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or its
Subsidiaries (as hereinafter defined) is a part or to which any of the
properties of the Company or its Subsidiaries are subject that are required to
be described in the Preliminary Prospectus or Prospectus and are not so
described.
(g) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of New Jersey, with all
necessary power and authority, corporate and otherwise, to own or lease and
operate its properties as described in the Prospectus and has obtained all
licenses, permits, certifications, registrations, approvals, consents and
franchises necessary to conduct its current business as described in the
Prospectus, except where the failure to obtain such licenses, permits,
certifications, registrations, approvals, consents and franchises would not have
a material adverse effect the financial position, results of operations or
business of the Company.
(h) The Company is registered as a bank holding company under the
Bank Holding Company Act of 1956 and is and, at the Time of Delivery will be in
good standing with the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"). The Company has not made an election with the Federal
Reserve Board to be a "financial holding company" as defined in applicable
regulations of the Federal Reserve Board.
(i) The Company's authorized, issued and outstanding capital stock
is as disclosed in the Prospectus. All of the issued shares of the Company's
capital stock have been duly authorized and are validly issued, fully paid and
non-assessable, and none of such outstanding shares of the Company's capital
stock have been issued in violation of any right of first refusal or first offer
or any preemptive rights (in any case whether statutory, contractual or
otherwise). The holders of the outstanding shares of the Company's capital stock
are not subject to personal liability solely by reason of being such holders.
All previous offers and sales of the outstanding shares of the Company's capital
stock, whether described in the Registration Statement or otherwise, were made
in conformity with applicable federal, state and foreign securities laws. The
authorized capital stock of the Company, including, without limitation, the
outstanding Common Stock, the Shares being issued pursuant to the Prospectus and
outstanding options to purchase shares of Common Stock conform in all material
respects with the descriptions thereof in the Prospectus, to the extent set
forth therein, and such descriptions conform in all material respects with the
instruments defining the same.
(j) The Company's only subsidiaries, as that term is defined in Rule
405 adopted under the Act, are Bayonne Community Bank, a New Jersey-chartered
commercial bank; BCB Holding Company Investment Corp., a New Jersey domestic
profit corporation; and BCB Equipment Leasing, LLC, a New Jersey domestic
limited liability company (each a "Subsidiary" and, collectively, the
"Subsidiaries"). Each Subsidiary is a direct or indirect wholly-owned subsidiary
of the Company. Each Subsidiary is duly organized, validly existing and in good
standing under the laws of the
4
jurisdiction in which it was organized, with all necessary power and authority,
corporate and otherwise, to own or lease and operate their properties as
described in the Prospectus and has obtained all licenses, permits,
certifications, registrations, approvals, consents and franchises necessary to
conduct their current businesses as described in the Prospectus, except where
the failure to obtain such licenses, permits, certifications, registrations,
approvals, consents and franchises would not have a material adverse effect on
the financial position, results of operations or business of any of the
Subsidiaries.
(k) The Company and each Subsidiary is duly qualified to do business
as foreign entities, and are in good standing, in all jurisdictions in which
such qualification is required, except where any such failure to be so qualified
or in good standing could not reasonably be expected to have a material adverse
effect on the financial position, results of operations or business of the
Company and its Subsidiaries taken as a whole. Each Subsidiary has made
available to the Representative a complete and correct copy of its articles and
bylaws and such articles and bylaws are in full force and effect as of the date
hereof.
(l) The Company and each Subsidiary, to the extent applicable, is in
compliance with the Equal Credit Opportunity Act, the Fair Housing Act, the
Community Reinvestment Act, the Home Mortgage Disclosure Act, the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, the Bank Secrecy Act, fair
lending laws or other laws relating to discrimination, consumer disclosure,
customer identification, and currency transaction or suspicious activity
reporting the noncompliance, breach or violation of which could reasonably be
expected to have a material adverse effect on the financial position, results of
operations or business of the Company and its Subsidiaries taken as a whole or
which would reasonably be expected to subject the Company or any of its
Subsidiaries or any of their directors or officers to civil money penalties.
(m) The outstanding shares of capital stock and other equity
interests of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable and are owned by the Company free and
clear of all liens, encumbrances and security interests; and no options,
warrants or other rights to purchase, agreements or other obligations to issue,
or other rights to convert any obligations into, shares of capital stock, equity
interests or ownership interests in the Subsidiaries, or securities convertible
into or exchangeable for capital stock or equity interests of, or other
ownership interests in, the Subsidiaries, are outstanding.
(n) The Company does not own, directly or indirectly, any stock or
other securities of any other corporation or any ownership interest in any
partnership, joint venture, limited liability company or other form of
association, except for:
(i) All the issued and outstanding capital stock of Bayonne
Community Bank and, through its ownership of such stock, shares of stock in the
Atlantic Central Bankers Bank, Federal Home Loan Banking of New York, and
Federal Reserve Bank of Philadelphia;
5
(ii) Equity securities held in the investment portfolio of
Bayonne Community Bank (the composition of which is not materially different
from the disclosures in the Prospectus as of specific dates);
(iii) All the issued and outstanding capital stock of BCB
Holding Company Investment Corp.
(iv) All the issued and outstanding membership interests in
BCB Equipment Leasing, LLC.
(o) Except as disclosed in the Prospectus, there are no outstanding:
(i) Securities or obligations of the Company convertible into
or exchangeable for any capital stock of the Company;
(ii) Warrants, rights or options to subscribe for the purchase
from the Company any such capital stock or any such convertible or exchangeable
securities or obligations (other than pursuant to the Company's stock option or
stock compensation plans); or
(iii) Obligations of the Company to issue any shares of
capital stock, any such convertible or exchangeable securities or obligations,
or any such warrants, rights or options.
(p) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, there has not been any:
(i) Material change (including, whether or not insured
against, any loss or damage to any material assets), or development involving a
prospective material change, in the properties, condition (financial or
otherwise), results of operations, stockholders' equity, business or prospects
of the Company and the Subsidiaries taken as a whole;
(ii) Material change, loss, reduction, termination or
non-renewal of any contract to which the Company or any of the Subsidiaries is a
party or by which any of their respective properties, assets or businesses are
bound or affected;
(iii) Material transaction entered into by the Company or any
of the Subsidiaries not in the ordinary course of their business;
(iv) Dividend or distribution of any kind declared, paid or
made by the Company or the Subsidiaries on its capital stock;
(v) Liabilities or obligations, direct or indirect, incurred
by the Company or the Subsidiaries that are material to the Company and the
Subsidiaries taken as a whole;
6
(vi) Change in the capitalization of the Company or the
Subsidiaries, except for the exercise, termination or expiration of options
and/or other rights to acquire securities of the Company; or
(vii) Change in the indebtedness of the Company or the
Subsidiaries that is material to the Company and the Subsidiaries taken as a
whole.
Neither the Company nor any of the Subsidiaries has any contingent liabilities
or obligations that are material and that are not expressly disclosed in the
Prospectus.
(q) The Company and each Subsidiary has good and marketable title in
fee simple to all real property, if any, and good title to all personal property
owned by it, in each case free and clear of all liens, security interests,
pledges, charges, encumbrances, mortgages and defects, except as are disclosed
in the Prospectus or such as would not have a material adverse effect on the
financial position, results of operations or business of the Company and the
Subsidiaries taken as a whole and do not interfere with the use made or proposed
to be made of such property by the Company; and any real property and buildings
held under lease by the Company and its Subsidiaries are held under valid,
subsisting and enforceable leases, with such exceptions as are disclosed in the
Prospectus or are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company or its
Subsidiaries. The Company and each Subsidiary, as applicable, has insured its
property against loss or damage by fire or other casualty, in amounts reasonably
believed by the Company to be adequate, and maintains insurance against such
other risks as management of the Company deems appropriate.
(r) Other than disclosed in the Prospectus, there is no litigation,
arbitration, claim, proceeding (formal or informal), investigation (including
without limitation any investigation by any banking regulator) or inquiry
pending, or, to the knowledge of the Company or its Subsidiaries, is threatened
or contemplated by, any governmental agency, instrumentality, court or tribunal,
domestic or foreign, or before any private arbitration tribunal to which the
Company or any of the Subsidiaries are or may be made a party or of which any of
their properties or assets are the subject which, if determined adversely to the
Company or the Subsidiaries would, individually or in the aggregate, have a
material adverse effect on the financial positions, results of operations or
businesses of the Company and its Subsidiaries taken as a whole nor, to the
Company's knowledge, does there exists any reasonable basis for such litigation,
claim, proceeding, protest, arbitration, investigation or inquiry. To the
knowledge of the Company, there are no outstanding orders, judgments or decrees
of any court, governmental agency, instrumentality or other tribunal enjoining
the Company or the Subsidiaries from, or requiring the Company or the
Subsidiaries to take or refrain from taking any action, or to which the Company
or the Subsidiaries or their properties, assets or businesses are bound or
subject.
(s) Radics & Co., LLC, which has certified certain financial
statements of the Company and its Subsidiaries included in the Prospectus, is an
independent registered public accounting firm as required by federal law and the
regulations of the SEC. Radics & Co., LLC was acquired by Xxxxx Xxxxxx, LLC, an
independent registered public accounting firm, on _______.
7
(t) The consolidated financial statements and schedules (including
the notes thereto) of the Company included in the Prospectus and any Preliminary
Prospectus were prepared in conformity with generally accepted accounting
principles consistently applied ("GAAP") throughout the periods involved and
fairly present the financial position, results of operations and cash flows of
the Company and its Subsidiaries on a consolidated basis at the dates and for
the periods presented. The financial information included in the Prospectus
under the captions "Summary Financial Information" and "Selected Consolidated
Financial Information" fairly presents the information shown therein and has
been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The supporting notes and
schedules included in the Prospectus or Preliminary Prospectus fairly state in
all material respects the information required to be stated therein in relation
to the financial statements taken as a whole. The unaudited interim financial
statements included in the Prospectus, if any, comply as to form in all material
respects with the applicable accounting requirements of Rule 10-01 of Regulation
S-X under the Act. Adjustments to financial information included in the
Prospectus under the caption "Capitalization" have been properly applied to the
historical amounts in the compilation of that information to reflect the sale by
the Company of 800,000 Firm Shares at the actual price set forth in the
Prospectus and the application of the estimated net proceeds therefrom.
(u) This Agreement has been duly authorized, executed and delivered
by the Company and, assuming due execution by the Representative, constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws relating to or affecting creditors' rights generally or by
general principles of equity and rules of law governing specific performance,
estoppel, waiver, injunctive relief and other equitable remedies (regardless of
whether enforcement is sought in a proceeding at law or in equity) and except
that, with respect to this Agreement, as the rights to indemnity and
contribution set forth herein may be limited by federal and state securities
laws or principles of public policy.
(v) The sale of the Shares and the execution, delivery and
performance of this Agreement by the Company and the consummation of the
transactions contemplated herein, do not and will not (with or without the
giving of notice, the lapse of time, or both):
(i) Conflict with any term or provision of the Company's and
each of the Subsidiaries' articles or certificate of incorporation, certificate
of organization or bylaws;
(ii) Result in a breach of, constitute a default under, result
in the termination or modification of, result in the creation or imposition of
any lien, security interest, charge or encumbrance upon any of the properties of
the Company or the Subsidiaries, or require any payment by the Company or the
Subsidiaries or impose any liability on the Company or the Subsidiaries pursuant
to, any contract, indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company or the Subsidiaries is a
party or by which any of their properties are bound or affected;
8
(iii) Conflict with or violate any law, rule, regulation,
judgment, order or decree of any government or governmental agency,
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or the Subsidiaries or any of its respective properties or businesses;
or
(iv) Result in a breach, termination or lapse of the Company's
or the Subsidiaries' corporate power and authority to own or lease and operate
its respective properties and conduct their respective businesses or of any
license, permit, certification, registration, approval, consent or franchise.
(w) When the Shares to be sold by the Company hereunder have been
duly delivered against payment therefor as contemplated by this Agreement, the
Shares will be validly issued, fully paid and non-assessable, and the holders
thereof will not be subject to personal liability solely by reason of being such
holders. The certificates or direct registration transaction advices
representing the Shares (to the extent certificates are issued) when duly
delivered against payment therefor as contemplated herein, will be in proper
legal form under, and conform in all respects to the requirements of the
corporate laws of the State of New Jersey, the Bank Holding Company Act of 1956,
and the National Market System of the Nasdaq Stock Market.
(x) The Company and its Subsidiaries have not and will not
distribute any offering material in connection with the offer and sale of the
Shares other than a Preliminary Prospectus, the Prospectus and other material,
if any, permitted by the Act.
(y) Neither the Company nor any of its Subsidiaries nor any of the
officers, directors of the Company or its Subsidiaries nor any affiliate thereof
has:
(i) Taken, directly or indirectly, any action designed to
cause or result in, or that has constituted or reasonably may be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares; or
(ii) Since January 1, 2005, (A) sold, bid for, purchased or
paid anyone any compensation for soliciting purchases of, the Shares, or (B)
paid or agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(z) The operations of the Company and its Subsidiaries with respect
to any real property currently leased or owned or by any means controlled by the
Company or its Subsidiaries (the "Premises") are in compliance with all foreign
or domestic, federal, state and local statutes, ordinances, regulations, rules,
standards and requirements of common law concerning or relating to industrial
hygiene and the protection of health and the environment (collectively, the
"Environmental Laws"). To the Company's knowledge, there are no conditions on,
about, beneath or arising from the Premises, that might give rise to liability
to the Company or any of its Subsidiaries, the imposition of a statutory lien or
require a "Response," "Removal" or "Remedial Action," each as defined herein,
under any of the Environmental Laws, except as described in the Prospectus.
Except as disclosed in the Prospectus, neither the Company nor any of the
Subsidiaries has received:
9
(i) Written or oral notice or has knowledge of any claim,
demand, investigation, regulatory action, suit or other action instituted or
threatened against the Company or the Subsidiaries for any portion of the
Premises relating to any of the Environmental Laws; and
(ii) Any notice of violation, citation, complaint, order,
directive, request for information or response thereto, notice letter, demand
letter or compliance schedule to or from any governmental or regulatory agency
arising out of or in connection with "hazardous substances" (as defined by
applicable Environmental Laws) on, about, beneath, arising from or generated at
the Premises. As used in this subsection, the terms "Response," "Removal" and
"Remedial Action" shall have the respective meanings assigned to such terms
under Sections 101(23)-101(25) of the Comprehensive Environmental Response,
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act, 42 U.S.C. 9601(23)-9601(25).
(aa) The Company and each Subsidiary owns, or possesses adequate
rights to use, all patents, patent applications, internet domain names,
trademarks, trademark registrations, applications for trademark registration,
trade names, service marks, licenses, inventions, copyrights, know-how
(including any unpatented and/or unpatentable proprietary or confidential
technology, information, systems, design methodologies and devices or procedures
developed or derived from or for the Company's business), trade secrets,
confidential information, processes and formulations and other proprietary
information necessary for, used in, or proposed to be used in, the conduct of
the business of the Company and the Subsidiaries as described in the Prospectus
(collectively, the "Intellectual Property"). Neither the Company nor any of the
Subsidiaries has infringed, are infringing or has received any notice of
conflict with, the asserted rights of others with respect to the Intellectual
Property and the Company knows of no reasonable basis therefor. To the knowledge
of the Company, no other parties have infringed upon or are in conflict with any
Intellectual Property. Neither the Company nor any of the Subsidiaries is a
party to, or bound by, any agreement material to the conduct of the Company's
and the Subsidiaries' businesses, pursuant to which royalties, honoraria or fees
are payable by the Company or the Subsidiaries to any person by reason of
ownership or use of any Intellectual Property.
(bb) The Company and each of the Subsidiaries makes and keeps
accurate books and records reflecting its assets and maintains a system of
internal accounting controls sufficient to provide reasonable assurances that:
(i) Transactions are executed in accordance with management's
general or specific authorization;
(ii) Transactions are recorded as necessary in order to permit
preparation of financial statements in accordance with GAAP and to maintain
accountability for assets of the Company and its Subsidiaries;
(iii) Access to assets of the Company and its Subsidiaries is
permitted only in accordance with management's general or specific
authorization; and
10
(iv) The recorded accountability for assets of the Company and
its Subsidiaries is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(cc) The Company and the Subsidiaries have filed with the
appropriate federal, state and local governmental agencies, and all appropriate
foreign countries and political subdivisions thereof, all tax returns that are
required to be filed or have duly obtained extensions of time for the filing
thereof and have paid all taxes shown on such returns or otherwise due and all
material assessments received by any of them to the extent that the same have
become due. Neither the Company nor any of the Subsidiaries have executed or
filed with any taxing authority, foreign or domestic, any agreement extending
the period for assessment or collection of any income or other tax, and neither
the Company nor any of the Subsidiaries is a party to any pending action or
proceeding by any foreign or domestic governmental agency for the assessment or
collection of taxes, and no claims for assessment or collection of taxes have
been asserted against the Company or the Subsidiaries.
(dd) Except for the plans that are specifically disclosed in the
Prospectus, neither the Company nor any of the Subsidiaries has any employee
benefit plan, profit sharing plan, employee pension benefit plan or employee
welfare benefit plan or deferred compensation arrangements (each a "Plan" and,
collectively, the "Plans") that are subject to the provisions of the Employee
Retirement Income Security Act of 1974, as amended, or the rules and regulations
thereunder ("ERISA"). All Plans are in compliance in all material respects with
all applicable laws, including, but not limited to, ERISA, are in compliance
with ERISA, and the Internal Revenue Code of 1986, as amended (the "Code"), and
have been operated and administered in all material respects in accordance with
their terms. Neither the Company nor any of the Subsidiaries has any employee
pension benefit plan that is subject to Part 3 of Subtitle B of Title I of
ERISA, or any defined benefit plan or multi-employer plan. Neither the Company
nor any of the Subsidiaries provide retiree life and/or retiree health benefits
or coverage for any employee or beneficiary of any employee after such
employee's termination of employment, except as required by Section 4980B of the
Code or under a Plan which is intended to be "qualified" under Section 401(a) of
the Code. No material liability has been, or reasonably could be expected to be,
incurred under Title IV of ERISA or Section 412 of the Code by any entity
required to be aggregated with the Company or its Subsidiaries pursuant to
Section 4001(b) of ERISA and/or Section 414(b) or (c) of the Code (and the
regulations promulgated thereunder) with respect to any "employee pension
benefit plan" which is not a Plan. No fiduciary or other party in interest with
respect to any of the Plans has caused any of such Plans to engage in a
prohibited transaction as defined in Section 406 of ERISA. As used in this
subsection, the terms "defined benefit plan," "employee benefit plan," "employee
pension benefit plan," "employee welfare benefit plan," "fiduciary" and
"multi-employer plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
(ee) No labor dispute exists with any of the Company's or any of the
Subsidiaries' employees, and to the Company's knowledge, no such labor dispute
is threatened. Except as disclosed in the Prospectus, the Company has no
knowledge of any existing or threatened labor disturbance by the employees of
any of the principal
11
suppliers, contractors or customers of the Company or the Subsidiaries that
could reasonably be expected to have a material adverse effect on the financial
position, results of operations or businesses of the Company and its
Subsidiaries taken as a whole. Except as disclosed in the Prospectus, none of
the Company's or Subsidiaries' employees is covered by a collective bargaining
agreement and, to the knowledge of the Company, no union organizing activity
exists with respect to any such employees.
(ff) The Company and its Subsidiaries have received all permits,
licenses, franchises, authorizations, registrations, qualifications and
approvals (collectively, the "Permits") of governmental and regulatory
authorities (including, without limitation, state or federal banking regulators)
as may be required of them to own their properties and conduct their businesses
in the manner described in the Prospectus, subject to such qualifications as may
be set forth in the Prospectus or Preliminary Prospectus; the Company and its
Subsidiaries have fulfilled and performed all of their material obligations with
respect to such Permits; and no event has occurred which allows or, after notice
or lapse of time or both, would allow revocation or termination thereof or
result in any other material impairment of the rights of the holder of any such
Permit, subject in each case to such qualifications as may be set forth in the
Prospectus.
(gg) No state or federal regulatory agency or governmental body has
issued any order or decree impairing, restricting or prohibiting the payment of
dividends by the Company or its wholly-owned subsidiary, Bayonne Community Bank.
(hh) Bayonne Community Bank has filed, or has had filed on its
behalf, on a timely basis, all materials, reports, documents and information,
including but not limited to annual reports, call reports and reports of
examination with each applicable bank regulatory authority, board or agency
which are required to be filed by it, except where the failure to timely file
such materials, reports, documents and information would not have a material
adverse effect on the financial position, results of operations or business of
Bayonne Community Bank.
(ii) The Company's Common Stock is traded in the Over the Counter
Electronic Bulletin Board ("OTCBB") under the symbol "BCBP." The Company
currently is in compliance, and expects to remain in compliance with, all
requirements related to its Common Stock being eligible to be traded on the
OTCBB until such time as the Shares are quoted on the National Market of the
Nasdaq Stock Market.
(jj) Other than as described in the Prospectus, all of which have
been waived in connection with the offer and sale of the Shares pursuant to the
Registration Statement, neither the filing of the Registration Statement nor the
offering or sale of the Shares as contemplated by this Agreement gives any
security holder of the Company any rights for or relating to the registration of
any capital stock of the Company or any rights to convert or have redeemed or
otherwise receive from the Company anything of value with respect to any other
security of the Company owned by such holder.
(kk) No consent, approval, authorization, order, registration,
license or permit of, or filing or registration (other than those which have
been obtained) with, any court, government, governmental agency (including the
Federal Reserve Board and the Federal Deposit Insurance Corporation) ,
instrumentality or other regulatory body or
12
official having jurisdiction over the Company and its Subsidiaries is required
for the valid and legal execution, delivery and performance by the Company of
this Agreement and the consummation by the Company of the transactions
contemplated hereby, except as may be required for the registration of the
Shares under the Act, the Exchange Act, and for compliance with the applicable
state securities or blue sky laws or the rules and policies of the National
Association of Securities Dealers, Inc. ("NASD") and the National Market of the
Nasdaq Stock Market.
(ll) The Common Stock of the Company is registered with the SEC
pursuant to Section 12(g) of the Exchange Act and the Company has filed timely
all reports, documents and information it is required to file with the SEC under
the Exchange Act and rules and regulations adopted thereunder. To the Company's
knowledge, no person has taken any action designed to cause, or reasonably
likely to result in, the termination of the registration of the Shares under the
Exchange Act. The Company has not received any notification from the SEC that it
is contemplating terminating such registration.
(mm) The Shares have been approved for quotation on the National
Market System of the Nasdaq Stock Market, subject only to notice of issuance.
(nn) The statements in the Registration Statement and Prospectus,
insofar as they are descriptions of or references to statutes, regulations,
policies, contracts, agreements or other documents, are accurate and present or
summarize fairly the information required to be disclosed under the Act or the
Regulations, and there are no contracts, agreements or other documents,
instruments or transactions of any character required to be described or
referred to in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement under the Act or the Regulations that
have not been so described, referred to or filed.
(oo) Each contract or other instrument (however characterized or
described) to which the Company or the Subsidiaries is a party, or by which any
of their respective properties, assets or businesses are bound or affected, has
been duly and validly executed by the Company or its Subsidiaries and, to the
Company's knowledge, by the other parties thereto. Each such contract or other
instrument is in full force and effect and is enforceable against the Company
and its Subsidiaries in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency or other similar laws relating to or affecting
creditors' rights generally or by general principles of equity and rules of law
governing specific performance, estoppel, waiver, injunctive relief and other
equitable remedies (regardless of whether enforcement is sought in a proceeding
at law or in equity), and neither the Company nor the Subsidiaries are, and to
the knowledge of the Company, no other party is, in default thereunder, and no
event has occurred that, with the lapse of time or the giving of notice, or
both, would constitute a default by the Company or a Subsidiary under any such
contract or other instrument. All necessary consents required by the Company
under such contracts or other instruments to the disclosure in the Prospectus
with respect thereto have been obtained.
(pp) Except as disclosed in the Registration Statement, neither the
Company nor any of its officers or directors is a party to any arrangements or
understandings, whether oral or written, nor has the Company or any such person
made
13
any payments for commissions, finder's fees or similar payments with respect to
the transactions contemplated by this Agreement.
(qq) The conditions for the Company's use of a registration
statement on Form S-1, set forth in the General Instructions thereto, in
connection with the offer and sale by the Company of the Shares pursuant to this
Agreement and the Registration Statement have been satisfied.
(rr) The deposit accounts of Bayonne Community Bank are insured by
the Bank Insurance Fund of the Federal Deposit Insurance Corporation to the
legal maximum, and no proceeding for the termination or revocation of such
insurance is pending or threatened. Bayonne Community Bank is a member in good
standing of the Federal Home Loan Bank of New York.
(ss) Neither the Company nor any of its Subsidiaries is, or upon
consummation of the transactions contemplated by this Agreement will be, an
"investment company" or a company "controlled" by an investment company as such
terms are defined in Sections 3(a) and 2(a)(9), respectively of the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and regulations
thereunder, and the Company will use commercially reasonable efforts to ensure
that its affairs and the affairs of its Subsidiaries are conducted in the future
so as not to become subject to the 1940 Act and the rules and regulations
thereunder.
(tt) No transaction has occurred or is proposed to occur between or
among the Company and any of its respective officers, directors or shareholders
or any affiliate of the foregoing that is required to be described in and is not
described in the Registration Statement and the Prospectus.
(uu) Except as disclosed in the Prospectus, neither the Company nor
any of the Subsidiaries have engaged in any transactions required to be
disclosed in the Prospectus involving the purchase or disposition of property,
the payment or distribution of cash or other property, the lending or borrowing
of money, the guarantying of obligations, the provision of services or any
similar transaction with:
(i) Any shareholder who is known to the Company to
beneficially own 5% or more of the Common Stock or any executive officer or
director of the Company or the Subsidiaries; or
(ii) Any entity in or for which any of the persons referred to
in the preceding clause (A) is known to the Company to be an executive officer
or director or (B) is a family member of any of such persons.
(vv) Neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any officer or director, agent, employee or other
person associated with or acting on behalf of the Company or any of its
Subsidiaries has:
(i) Used any Company funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to a political activity;
14
(ii) Made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from Company funds;
(iii) Violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or
(iv) Made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(ww) No unregistered securities of the Company have been sold by the
Company or on behalf of the Company by any person or persons controlling,
controlled by, or under common control with the Company within three years prior
to the date hereof, except as disclosed in the Registration Statement.
(xx) Any certificate signed by any officer of the Company in such
capacity and delivered to the Underwriter or to counsel for the Underwriter
pursuant to this Agreement shall be deemed a representation and warranty by the
Company to the Underwriter as to the matters covered thereby.
(yy) The allowance for loan losses shown on the Company's financial
statements is adequate in all material respects to provide for anticipated
losses inherent in loans outstanding. Except as set forth in the Registration
Statement, Preliminary Prospectus and Prospectus, neither the Company nor any
Subsidiary has any loans which have been criticized, designated or classified by
the management of the Company, management of Bayonne Community Bank or examiners
representing any federal or state banking regulator or by the Company's outside
independent auditors as "Special Mention," "Substandard," "Doubtful", "Loss" or
as a "Potential Problem Loan."
(zz) Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data, if
any, included in the Registration Statement, Preliminary Prospectus or
Prospectus is not based or derived from sources that are reliable and accurate
in all material respects.
2. Purchase and Sale of Firm Shares.
(a) On the basis of the representations, warranties, covenants and
agreements contained herein, but subject to the terms and conditions set forth
herein, the Company agrees to sell to each of the Underwriters, and each of the
Underwriters agrees severally, and not jointly, to purchase from the Company, at
a purchase price of _____ Dollars and ____ Cents ($ ) per share (the "Per
Share Price"), the number of Firm Shares to be purchased by such Underwriter as
set forth opposite the name of such Underwriter in Schedule I hereto.
(b) The Company hereby grants to the Underwriters the right to
purchase at their election in whole or in part from time to time up to 120,000
Option Shares at the Per Share Price, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to purchase
Option Shares may be exercised by written notice from the Representative to the
Company within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Option
15
Shares to be purchased and the date on which such Option Shares are to be
delivered, as determined by the Representative but in no event earlier than the
First Time of Delivery (as hereinafter defined) or, unless the Representative
otherwise agrees in writing, earlier than two (2) or later than ten (10)
business days after the date of such notice. In the event the Underwriters elect
to purchase all or a portion of the Option Shares, the Company agrees to furnish
or cause to be furnished to the Representative the certificates, letters and
opinions, and to satisfy all conditions set forth in Section 7 hereof at the
Subsequent Time of Delivery (as hereinafter defined).
(c) In making this Agreement, each Underwriter is contracting
severally, and not jointly, and except as provided in Sections 2(b) and 9
hereof, the agreement of each Underwriter is to purchase only that number of
shares specified with respect to that Underwriter in Schedule I hereto. No
Underwriter shall be under any obligation to purchase any Option Shares prior to
an exercise of the option with respect to such Shares granted pursuant to
Section 2(b) hereof.
3. Offering by the Underwriters. Upon authorization by the Representative
of the release of the Shares, the several Underwriters propose to offer the
Shares for sale upon the terms and conditions disclosed in the Prospectus.
4. Delivery of Shares; Closing. The Firm Shares shall be issued in the
form of one or more fully registered stock certificates or direct registration
transaction advices in such denomination and registered in the name of the
nominee of The Depository Trust Company ("DTC") or in such names as the
Representative may request upon at least 48 hours prior notice to the Company,
and shall be delivered by or on behalf of the Company to the Representative for
the account of such Underwriter, against payment by such Underwriter on its
behalf of the purchase price therefore by wire transfer of immediately available
funds to such accounts as the Company shall designate in writing. The closing of
the sale and purchase of the Firm Shares shall be held at the offices of
Xxxxxxxx Xxxxxxxx, P.C., 0000 Xxxxxxx Xxxxx Xxxx, Xxxx Xxxx, XX 00000. The time
and date of such delivery and payment shall be, with respect to the Firm Shares,
at 9:00 a.m., prevailing Eastern time, on the fourth (4th) full business day
after this Agreement is executed or at such other time and date as the
Representative and the Company may agree upon in writing, and, with respect to
the Option Shares, at 9:00 a.m., prevailing Eastern time, on the date specified
by the Representative in the written notice given by the Representative of the
Underwriters' election to purchase all or part of such Option Shares, or at such
other time and date as the Representative and the Company may agree upon in
writing. Payment for the Option Shares shall be made to the Company by wire
transfer of immediately available funds against delivery of the Option Shares to
such accounts as the Company may designate. Such time and date for delivery of
the Firm Shares is herein called the "First Time of Delivery," such time and
date for delivery of any Option Shares, if not the First Time of Delivery, is
herein called a "Subsequent Time of Delivery," and each such time and date for
delivery is hereinafter called a "Time of Delivery." The Company shall make the
stock certificates or direct registration transaction advices available for
examination by the Representative and counsel for the Underwriters not later
than 9:30 a.m. prevailing Eastern time on the business day prior to each Time of
Delivery at the office of Xxxxxxxx Xxxxxxxx, P.C., 0000 Xxxxxxx Xxxxx
00
Xxxx, Xxxx Xxxx, XX 00000 or at such other location specified by the
Representative or counsel for the Underwriters in writing at least 48 hours
prior to such Time of Delivery.
5. Certain Covenants and Agreements of the Company. The Company covenants
and agrees with the Underwriter as follows:
(a) If Rule 430A of the Regulations is employed, the Company will
timely file the Prospectus pursuant to and in compliance with Rule 424(b) of the
Regulations and will advise the Underwriter of the time and manner of such
filing.
(b) The Company will not file or publish any amendment or supplement
to the Registration Statement, Preliminary Prospectus or Prospectus at any time
before the completion (in the opinion of the Underwriter's counsel) of the
distribution of the Shares by the Underwriter that is not in compliance with the
Regulations and approved by the Underwriter.
(c) The Company will advise the Underwriter immediately, and confirm
such advice in writing when:
(i) Any post-effective amendment to the Registration Statement
is filed with the SEC under Rule 462(c) under the Act or otherwise;
(ii) Any Rule 462(b) Registration Statement is filed;
(iii) Receipt of any comments from the SEC concerning the
Registration Statement;
(iv) Any post-effective amendment to the Registration
Statement becomes effective, or when any supplement to the Prospectus or any
amended Prospectus has been filed;
(v) Request of the SEC for amendment or supplementation of the
Registration Statement or Prospectus or for additional information;
(vi) Issuance of any order by court or any federal or state
governmental or regulatory agency or body suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or institution or known threat of institution of
any such proceeding by any such body for such purpose and, in such event, the
Company will use its best efforts to obtain the withdrawal thereof as soon as
possible; and
(vii) Suspension of the ability of the Underwriter to offer
and sell the Shares in any jurisdiction in which the Underwriter intends to make
such offers or sales.
(d) If the delivery of a Prospectus relating to the Shares is
required under the Act any time prior to the expiration of nine (9) months after
the date of the Prospectus and if at such time any events have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact required
to be stated therein, or necessary
17
to make the statements therein, in light of the circumstances under which they
are made, not misleading, or if for any reason it is necessary during the same
period to amend or supplement the Prospectus, the Company promptly will notify
the Representative and upon its request (but at the Company's expense) prepare
an amendment or supplement to the Prospectus to be filed with the SEC and any
state securities regulator that corrects such material misstatement or material
omission or effects such compliance and will furnish without charge to each
Underwriter and to any dealer in the Common Stock as many copies of such amended
or supplemented Prospectus as the Representative from time to time reasonably
may request. For purposes of this Section 5(d), the Company will provide such
information to the Underwriter, the Underwriter's counsel and counsel to the
Company as shall be necessary to enable such persons to consult with the Company
with respect to the need to amend or supplement the Registration Statement,
Preliminary Prospectus or Prospectus or file any document.
(e) The Company promptly will provide the Representative, without
charge, so long as a Prospectus relating to the Shares is required to be
delivered under the Act, as many copies of each Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto as the Representative
reasonably may request.
(f) The Company hereby consents to the use of such copies of the
Preliminary Prospectus and the Prospectus for purposes permitted by the Act, the
Regulations and the securities or blue sky laws of the states or foreign
jurisdictions in which the Shares are offered by the Underwriter and by all
dealers to whom Shares may be sold, both in connection with the offer and sale
of the Shares and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by the Underwriter
or any dealer.
(g) The Company has furnished or will furnish to the Representative
at least one original signed copy of the Registration Statement as filed with
the SEC and of all amendments and supplements thereto and at least one copy of
all exhibits filed therewith and of all consents and certificates of experts,
and will deliver to the Representative such number of conformed copies of the
Registration Statement, including financial statements and exhibits, and all
amendments thereto, as the Representative reasonably may request.
(h) The Company will comply with the Act, the Regulations, the
Exchange Act and the rules and regulations thereunder so as to permit the
continuance of sales of and dealings in the Shares for as long as may be
necessary to complete the distribution of the Shares as contemplated hereby.
(i) The Company will furnish such information and pay such filing
fees and other expenses as may be required, and otherwise cooperate in the
registration or qualification of the Shares, or exemption therefrom, for offer
and sale by the Underwriter and by dealers under the securities or blue sky laws
of such jurisdictions in which the Underwriter determines to offer the Shares,
and will file such consents to service of process or other documents necessary
or appropriate in order to effect such registration or qualification; provided,
however, that no such qualification shall be required in any jurisdiction where,
solely as a result thereof, the Company would be subject to taxation or
qualification as a foreign corporation doing business in such jurisdiction where
it is not
18
now so qualified or to take any action which would subject it to service of
process in suits, other than those arising out of the offering or sale of the
Shares, in any jurisdiction where it is not now so subject. The Company will,
from time to time, prepare and file such statements and reports as are or may be
required to continue such qualification in effect for so long a period as is
required under the laws of such jurisdictions for such offer and sale of the
Shares. The Company will furnish such information and pay such filing fees and
other expenses as may be required, and otherwise cooperate in the inclusion of
the Shares for quotation on the National Market of the Nasdaq Stock Market.
(j) During the period of three years from the date hereof, the
Company will furnish to the Representative and, upon request, to each of the
other Underwriters, without charge (unless such information is available to the
public at the Company's web site at xxx.xxxxxxxxxx.xxx):
(i) Copies of all reports or other communications (financial
or otherwise) furnished or made available to shareholders;
(ii) As soon as they are available, copies of any reports and
financial statements furnished to or filed under the Exchange Act or with the
Nasdaq Stock Market; and
(iii) Every material press release with respect to the Company
or its affairs that is released or prepared by the Company.
(k) For a period of twelve months from the date hereof, the Company
will deliver to the Underwriter such additional information concerning the
business and financial condition of the Company as the Underwriter may from time
to time reasonably request in writing, and which can be prepared or obtained by
the Company without unreasonable effort or expense.
(l) Prior to the termination of the underwriting syndicate
contemplated by this Agreement, the Company and its Subsidiaries and affiliates
will not and the Company shall cause its officers and directors not to:
(i) Take any action, directly or indirectly, designed to, or
that could reasonably be expected to, cause or result in the stabilization or
manipulation of the price of any security of the Company; or
(ii) Sell, bid for, purchase or pay anyone any compensation,
directly or indirectly, for soliciting purchases of the Shares.
(m) During the period beginning from the date hereof and continuing
to and including the date 180 days after the date of the Prospectus, the Company
will not, and will use its best efforts to cause each executive officer and
director of the Company and certain shareholders designated by the
Representative to deliver to the Representative an agreement in the form
attached hereto, agreeing, without the prior written consent of the
Representative, directly or indirectly not to:
19
(i) Offer, sell, contract to sell or otherwise dispose of, any
shares of Common Stock or securities convertible into or exercisable or
exchangeable for shares of Common Stock; or
(ii) Enter into any swap or other agreement or any transaction
that transfers, in whole or in part, the economic consequences of ownership of
shares of Common Stock whether any such swap or other agreement is to be settled
by delivery of shares of Common Stock, other securities, cash or otherwise;
except for the sale of the Shares hereunder, except for the issuance of Common
Stock upon the exercise of stock options or warrants or the conversion of
convertible securities outstanding on the date of this Agreement or to the
extent that such stock options, warrants and convertible securities are
disclosed in the Prospectus; and except for the grant to employees of stock
options to purchase Common Stock which are not exercisable within such 180 days.
(n) For a period of three years from the date hereof, the Company
will use all reasonable efforts to comply with the maintenance requirements
applicable to securities included for quotation on the National Market of the
Nasdaq Stock Market, including but not limited to, all corporate governance
requirements.
(o) The Company shall, at its sole cost and expense, supply and
deliver to the Underwriter and the Underwriter's counsel, within a reasonable
period from the Subsequent Time of Delivery, transaction binders in such number
and in such form and content as the Underwriter reasonably requests.
(p) For purposes of making a filing with NASD relating to its
approval of the fairness and reasonableness of the underwriting terms and
arrangements, the Company represents that:
(i) There are no claims, payments, arrangements, agreement or
understandings relating to the payment of a finder's, consulting or origination
fee by the Company or any person who is a shareholder of the Company prior to
the date hereof with respect to the sale of Shares hereunder or any other
arrangements, agreements or understandings of the Company, or to the best of the
Company's knowledge, any person who is a shareholder of the Company prior to the
date hereof that may affect the Underwriter's compensation as determined by
NASD.
(ii) It has not made any direct or indirect payments (in cash,
securities or otherwise) to:
(A) Any person, as a finder's fee, consulting fee or
otherwise in consideration of such person raising capital for the Company or
introducing to the Company persons who raised or provided capital to the
Company;
(B) Any NASD member; or
(C) Any person or entity that has any direct or indirect
affiliation or association with any NASD member within the twelve months prior
to the date hereof;
20
(iii) No officer, director or any beneficial owner of the
Company's unregistered securities has any direct or indirect affiliation or
association with any NASD member;
(iv) No officer, director or owner of at least 5% of the
Company's outstanding Common Stock is an affiliate or associated person of an
NASD member who is an Underwriter; and
(v) There is no agreement, understanding, retainer or similar
arrangement which would result in the Underwriter performing investment banking,
financial advisory or consulting services to the Company within 90 days of the
date hereof which with the Underwriter will receive compensation from the
Company.
6. Fees and Expenses.
(a) The Company will pay or cause to be paid, and bear or cause to
be borne, all costs and expenses incident to the performance of the obligations
of the Company under this Agreement, whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated
pursuant to Section 10 hereof, including:
(i) The printing and mailing expenses associated with the
Registration Statement and any post-effective amendments thereto, any
Preliminary Prospectus, the Prospectus, this Agreement, Agreement among
Underwriters, the Underwriters' Questionnaire submitted to each of the
Underwriters by the Representative in connection herewith, the power of attorney
executed by each of the Underwriters in favor of Xxxxxx Xxxxxxxxxx Xxxxx LLC in
connection herewith, the Selected Dealer Agreement and related documents
(collectively, the "Underwriting Documents") and the preliminary blue sky
memorandum relating to the offering prepared by Xxxxxxxx Xxxxxxxx, P.C., counsel
to the Underwriters (collectively with any supplement thereto, the "Preliminary
Blue Sky Memorandum");
(ii) The fees, disbursements and expenses of the accountants
and counsel for the Company incurred in the preparation of the Registration
Statement and any post-effective amendments thereto (including financial
statements and exhibits), Preliminary Prospectus, the Prospectus and any
amendments or supplements thereto, the Underwriting Documents and the
Preliminary Blue Sky Memorandum;
(iii) The delivery of copies of the foregoing documents to the
Underwriters;
(iv) The fees, expenses and other costs of, or incident to, a
filing made with NASD relating to its approval of the fairness and
reasonableness of the underwriting terms and arrangements;
(v) The costs and expenses incident to the preparation,
authentication, issuance, sale and delivery to the Underwriter of any
certificates or direct registration transaction advices evidencing the Shares,
including transfer agent's and registrar's fees;
21
(vi) The filing fees, expenses and disbursements of counsel
for the Underwriters (and local counsel therefore) relating to qualifying the
Shares for offer and sale under the securities or the blue sky laws of those
states in which the Shares are to be offered or sold, which counsel fees shall
not exceed $5,000 in the aggregate exclusive of filing fees;
(vii) Any application fees, maintenance fees, counsel expenses
and other costs related to qualifying the Shares for quotation on the National
Market of the Nasdaq Stock Market;
(viii) Any expenses for travel, lodging, and meals incurred by
the Company and any of its officers, directors and employees in connection with
any meetings with prospective investors in the Shares;
(ix) The filing fees of the SEC;
(x) The cost of printing certificates, if any, for the Shares;
(xi) All taxes, if any, on the issuance, delivery and transfer
of the Shares sold by the Company; and
(xii) All other costs and expenses reasonably incident to the
performance of the Company's obligations hereunder that are not otherwise
specifically provided for in this Section 6(a).
(b) On the date that is the First Time of Delivery, the Company
shall pay the Representative a non-accountable expense allowance in the amount
of $125,000. Payment of the non-accountable expense allowance shall be made to
the Representative by wire transfer of immediately available funds.
(c) The Representative will pay the legal fees and expenses of
Underwriter's counsel and the general out-of-pocket expenses of the Underwriter.
7. Conditions to Underwriter's Obligations. The obligations of the
Underwriters hereunder to purchase and pay for the Shares to be delivered at
each Time of Delivery shall be subject, in their discretion, to the accuracy and
continuing accuracy of the representations and warranties of the Company, to the
performance by the Company of its covenants, agreements and obligations
hereunder, and to the following additional conditions precedent:
(a) If required by the Regulations, the Prospectus shall have been
filed with the SEC pursuant to Rule 424(b) of the Regulations within the
applicable time period prescribed for such filing by the Regulations.
(b) On or prior to each Time of Delivery, no order of any court or
any federal, state, local or foreign governmental or regulatory agency or body
preventing or suspending the effectiveness of the Registration Statement
(including any document incorporated by reference therein), preventing or
suspending the use of any Preliminary Prospectus, or preventing or suspending
the sale of any of the Shares shall have been
22
issued, and no proceedings for that purpose have been initiated, are pending, or
threatened.
(c) The Representative shall have received a copy of an executed
lock-up agreement from each of the Company's executive officers and directors
and certain shareholders of Common Stock, in the form attached hereto as Exhibit
A.
(d) The Representative shall have received an opinion, dated at such
Time of Delivery, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel to the
Company, in form and substance satisfactory to the Representative and its
counsel, to the effect that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of New Jersey and has
the corporate power and authority to own or lease its properties and conduct its
business as described in the Preliminary Prospectus and Prospectus and to enter
into this Agreement and perform its obligations hereunder. The Company is duly
qualified to transact business as a foreign corporation in each jurisdiction in
which it owns or leases property, or conducts any business, except where the
failure to so qualify would not have a material adverse effect on the financial
position, results of operations or business of the Company.
(ii) The Company does not own, directly or indirectly, any
stock or other securities of any other corporation or any ownership interest in
any partnership, joint venture, limited liability company or other form of
association, except for:
(A) All the issued and outstanding capital stock of
Bayonne Community Bank and, through its ownership of such stock, shares of stock
in the Atlantic Central Bankers Bank, Federal Home Loan Bank of New York, and
Federal Reserve Bank of Philadelphia;
(B) Equity securities held in the investment portfolio
of Bayonne Community Bank (the composition of which is not materially different
from the disclosures in the Prospectus as of specific dates);
(C) All the issued and outstanding capital stock of BCB
Holding Company Investment Corp.
(D) All the issued and outstanding membership interests
in BCB Equipment Leasing, LLC.
(iii) All of the issued shares of capital stock of the
Company, including the Shares to be sold by the Company pursuant hereto when
delivered against payment therefore as contemplated hereby, have been duly
authorized and validly issued, are fully paid and non-assessable and conform to
the description of the Common Stock contained in the Registration Statement,
Preliminary Prospectus and Prospectus. None of the issued shares of Common Stock
have been issued or are owned or held in violation of any statutory or any other
preemptive rights of shareholders, and no person or entity (including any holder
of outstanding shares of Common Stock) has any statutory or any other preemptive
or other rights to subscribe for any of the Shares.
23
(iv) Except as disclosed in the Prospectus, there are no
outstanding:
(A) Securities or obligations of the Company convertible
into or exchangeable for any capital stock of the Company;
(B) Warrants, rights or options to subscribe for the
purchase from the Company any such capital stock or any such convertible or
exchangeable securities or obligations (other than pursuant to the Company's
stock option or stock compensation plans); or
(C) Obligations of the Company to issue any shares of
capital stock, any such convertible or exchangeable securities or obligations,
or any such warrants, rights or options.
(v) The sale of the Shares at such Time of Delivery and the
performance of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or violate any provision of the certificate
of incorporation or bylaws or comparable charter documents of the Company as
amended to date or any existing law, statute, rule or regulation, or, in any
material respect conflict with, or (with or without the giving of notice or the
passage of time or both) result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which the
Company is a party or to which any of its properties or assets are subject, or,
conflict with or violate any order, judgment or decree known to such counsel, of
any court or governmental agency or body having jurisdiction over the Company or
any of its properties or assets.
(vi) The Registration Statement has become effective under the
Act and, to the knowledge of such counsel, no order of any court or any federal
or state governmental or regulatory agency or body preventing or suspending the
effectiveness of the Registration Statement (including any document incorporated
by reference therein), preventing or suspending the use of any Preliminary
Prospectus, or preventing or suspending the sale of any of the Shares has been
issued, and no proceedings for that purpose have been initiated, are pending, or
threatened.
(vii) Any and all filings required to be made with the SEC
under Rule 424 and Rule 430A under the Act have been made.
(viii) The Shares have been approved for quotation on the
National Market of the Nasdaq Stock Market, subject only to notice of issuance.
(ix) Other than the SEC, NASD and the Nasdaq Stock Market, no
consent, approval, authorization, order or declaration of or from, or
registration, qualification or filing with, any court or governmental agency or
body is required for the offer, sale or issuance of the Shares or under state
securities or blue sky laws in connection with the offer, sale and distribution
of the Shares by the Underwriters.
24
(x) Other than as disclosed in or contemplated by the
Registration Statement, Preliminary Prospectus and Prospectus, there is no
litigation, arbitration, claim, proceeding (formal or informal) or investigation
pending or, to such counsel's knowledge, threatened, in which the Company or any
of its Subsidiaries is a party or of which any of their properties or assets are
subject which, if determined adversely to the Company or its Subsidiaries, would
individually or in the aggregate have a material adverse effect on the financial
position, results of operations or businesses of the Company and the
Subsidiaries taken as a whole.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due execution by the Representative,
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws relating to or affecting creditors' rights
generally or by general principles of equity and rules of law governing specific
performance, estoppel, waiver, injunctive relief and other equitable remedies
(regardless of whether enforcement is sought in a proceeding at law or in
equity) and except that, with respect to this Agreement, as the rights to
indemnity and contribution set forth herein may be limited by federal and state
securities laws or principles of public policy.
(xii) Neither the Company nor any of its Subsidiaries is an
"investment company" or a company "controlled" by an investment company as such
terms are defined in Sections 3(a) and 2(a)(9), respectively, of the 1940 Act.
(xiii) The Preliminary Prospectus, Prospectus and each
amendment or supplement thereto (other than the financial statements, the notes
and schedules thereto and other financial data included therein, to which such
counsel need express no opinion), as of their respective effective or issue
dates, complied as to form in all material respects with the requirements of the
Act and the respective rules and regulations thereunder.
Such counsel also shall state that they participated in the preparation of
the Preliminary Prospectus and Prospectus and in conferences with officers and
other representatives of the Company, representatives of the independent
registered public accounting firm for the Company, and representatives of and
counsel to the Underwriters at which the contents of the Registration Statement,
Preliminary Prospectus, and Prospectus and related matters were discussed and,
although such counsel has not passed upon or assumed any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Preliminary Prospectus or Prospectus, and although such counsel has not
undertaken to verify independently the accuracy or completeness of the
statements in the Preliminary Prospectus or Prospectus, no facts have come to
such counsel's attention to lead them to believe that the Preliminary Prospectus
or Prospectus, or any amendment or supplement thereto made prior to such Time of
Delivery, on its issue date and as of such Time of Delivery, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading (provided that such counsel need express no belief
25
regarding the financial statements, the notes and schedules thereto and other
financial data contained in the Prospectus, or any amendment or supplement
thereto).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of officers of
the Company, public officials and letters from officials of the SEC, NASD and
the Nasdaq Stock Market. Copies of such certificates of officers of the Company
and other opinions shall be addressed and furnished to the Underwriters and
furnished to counsel for the Underwriters.
(e) Xxxxxxxx Xxxxxxxx, P.C., counsel for the Underwriters, shall
have furnished to the Representative such opinion or opinions, dated at such
Time of Delivery, with respect to such matters as the Representative reasonably
may request, and the Company shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
(f) The Representative shall have received from Xxxxx Xxxxxx Company
LLP, in form and substance (including, without limitation, the non-material
nature of the changes or decreases, if any, referred to in clause (iii) below)
satisfactory to the Representative, letters dated as of the date hereof, the
date of the First Time of Delivery, and the date(s) of Subsequent Time of
Delivery containing statements and information of the type ordinarily included
in accountants' "comfort letters" to Underwriters with respect to the financial
statements and certain financial information contained in the Preliminary
Prospectus and Prospectus, provided that the letter dated as of the date of the
First Time of Delivery shall use a "cut-off date" not earlier than the date
hereof. In such letters, Xxxxx Xxxxxx Company LLP shall:
(i) Confirm that they are an independent registered public
accounting firm within the meaning of the Act and the Regulations, and stating
that the section of the Registration Statement under the caption "Experts" is
correct insofar as it relates to them;
(ii) State that, in their opinion, the consolidated financial
statements, schedules and notes of the Company and the Subsidiaries audited by
them and included in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the Act and the
Regulations;
(iii) State that, on the basis of the specified procedures,
which includes the procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial information, as described
in SAS No. 71, Interim Financial Information (with respect to the latest
available unaudited consolidated financial statements of the Company), a reading
of the latest available unaudited interim consolidated financial statements of
the Company (with an indication of the date of the latest available unaudited
interim financial statements), a reading of the minutes of the meetings of the
shareholders and the Board of Directors of the Company and the Audit and
Compensation Committees of such Boards and inquiries to certain officers and
other employees of the Company responsible for operational, financial and
accounting matters and other specified procedures and inquiries, nothing has
come to their attention that
26
would cause them to believe that the unaudited consolidated financial statements
of the Company included in the Registration Statement and related schedules, if
any:
(A) Do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the Regulations;
(B) Were not fairly presented in conformity with GAAP or
statutory accounting practices on a basis substantially consistent with that of
the audited consolidated financial statements and related schedules included in
the Registration Statement; or
(C) At a specified date not more than five business days
prior to the date of such letter, there was any change in the capital stock
(other than the issuance of capital stock upon the exercise of options granted
under Plans disclosed in the Prospectus or otherwise outstanding and disclosed
in the Prospectus), increase in long-term debt of the Company or any decrease in
consolidated net current assets or shareholders equity of the Company as
compared with the amounts shown in the December 31, 2004 audited balance sheets
of the Company included the Registration Statement or that for the periods from
December 31, 2001 to the date of the latest available unaudited financial
statements of the Company and to a specified date not more than five (5) days
prior to the date of the letter, there were any decreases, as compared to the
corresponding periods in the prior year, in operating income or total or per
share amounts of net income, except in all instances for changes, decreases or
increases that the Registration Statement discloses have occurred or may occur
and except for such other changes, decreases or increases which the Underwriter
shall in its sole discretion accept;
All financial statements and schedules included in material incorporated
by reference into the Prospectus shall be deemed included in the Registration
Statement for purposes of this subsection (f).
(g) Since the date of the latest audited financial statements
included in the Prospectus, the Company shall not have sustained any material
adverse change, or any development involving a prospective material adverse
change (including, without limitation, a change in management or control of the
Company), in or affecting the position (financial or otherwise), results of
operations, net worth or business prospects of the Company or any of its
Subsidiaries, other than as disclosed or contemplated by the Prospectus, the
effect of which, in either such case, in the Representative's reasonable
judgment makes it impracticable or inadvisable to proceed with the purchase,
sale and delivery of the Shares.
(h) Subsequent to the date hereof, there shall not have occurred any
of the following:
(i) Any suspension or limitation in trading in the Company's
Common Stock by any registered national securities association, the SEC or order
of any court or federal, state, local or foreign regulatory or governmental
authority or body;
(ii) A moratorium on commercial banking activities declared by
either federal or state authorities;
27
(iii) Any outbreak or escalation of hostilities involving the
United States or other national or international calamity or crisis if such
event specified in this clause (iii), in the Representative's reasonable
judgment, makes it impracticable or inadvisable to proceed with the purchase,
sale and delivery of the Shares; or
(iv) Any material adverse change in the financial markets of
the United States which, in the Representative's judgment, make it inadvisable
to proceed with the purchase, sale and delivery of the Shares.
(i) The Company shall have furnished to the Representative at such
Time of Delivery certificates of the (i) chief executive officer or an executive
vice president and (ii) the chief financial officer of the Company satisfactory
to the Representative, as to the accuracy of the presentations and warranties of
the Company herein at and as of such Time of Delivery with the same effect as if
made at such Time of Delivery, as to the performance by the Company of all of
its obligations, agreements, conditions and covenants hereunder to be performed
at or prior to such Time of Delivery, and as to such other matters as the
Representative reasonably may request, and the Company shall have furnished or
caused to be furnished certificates of such other officers as to such matters as
the Representative reasonably may request.
(j) The Underwriter shall have received at or prior to the First
Time of Delivery from Underwriter's counsel a memorandum or summary, in form and
substance satisfactory to the Underwriter, with respect to the qualification for
offering and sale by the Underwriter of the Shares under the securities or blue
sky laws of such jurisdictions designated by the Underwriter pursuant to Section
5(i) hereof.
(k) At the First Time of Delivery and at any Subsequent Time of
Delivery:
(i) The Registration Statement and any post-effective
amendment thereto and the Prospectus and any amendments or supplements thereto
shall contain all statements that are required to be stated therein in
accordance with the Act and the Regulations and shall conform in all material
respects to the requirements of the Act and the Regulations, and neither the
Registration Statement nor any post-effective amendment thereto nor the
Prospectus and any amendments or supplements thereto shall contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(ii) Since the respective dates as of which information is
given in the Registration Statement and any post-effective amendment thereto and
the Prospectus and any amendments or supplements thereto, except as otherwise
stated therein, there shall have been no material adverse change in the
financial position, results of operations and businesses of the Company and the
Subsidiaries taken as a whole from that set forth therein, whether or not
arising in the ordinary course of business;
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus or any amendment or
supplement thereto, there has been no event or transaction, contract or
agreement entered into by the
28
Company or the Subsidiaries other than in the ordinary course of business and as
set forth in the Registration Statement or Prospectus, that has not been, but
would be required to be, set forth in the Registration Statement or Prospectus;
(iv) Since the respective dates as of which information is
given in the Registration Statement and any post-effective amendment thereto and
the Prospectus and any amendments or supplements thereto, there has been no
material adverse change, loss, reduction, termination or non-renewal of any
contract to which the Company or the Subsidiaries is a party, that has not been,
but would be required to be set forth in the Registration Statement or
Prospectus; and
(v) No action, suit or proceeding at law or in equity is
pending or threatened against the Company or the Subsidiaries that would be
required to be set forth in the Prospectus, other than as set forth therein, and
no proceedings are pending or threatened against or directly affecting the
Company or its Subsidiaries before or by any federal, state or other commission,
board or administrative agency wherein an unfavorable decision, ruling or
finding would have a material adverse effect on the financial position, results
of operations or businesses of the Company and its Subsidiaries taken as a
whole.
(l) The issuance and sale of the Shares shall be legally permitted
under applicable blue sky or state securities laws so long as such sales are
made in accordance with the Blue Sky Memorandum.
(m) At the First Time of Delivery and at any Subsequent Time of
Delivery, the Representative shall have been furnished such additional
documents, information and certificates relating to the Company and the
Subsidiaries or the transactions contemplated by this Agreement as it shall have
reasonably requested.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the Underwriter and the Underwriter's counsel. The Company shall
furnish the Underwriter with such conformed copies of such opinions,
certificates, letters and other documents as it shall reasonably request. If any
condition to the Underwriter's obligations hereunder to be fulfilled prior to or
at the Time of Delivery or Subsequent Time of Delivery, as the case may be, is
not fulfilled, the Underwriter may terminate this Agreement with respect to the
Time of Delivery or any Subsequent Time of Delivery, as applicable, or, if it so
elects, waive any such conditions which have not been fulfilled or extend the
time for their fulfillment. Any such termination shall be without liability of
the Underwriter to the Company.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
29
(i) Any untrue statement or alleged untrue statement made by
the Company in Section 1 of this Agreement;
(ii) Any untrue statement or alleged untrue statement of any
material fact contained in:
(A) Any Registration Statement, Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto; or
(B) Any application or other document, or amendment or
supplement thereto, executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Shares under the securities or blue sky laws thereof or filed with
SEC, NASD or the Nasdaq Stock Market (each an "Application"); or
(iii) The omission of or alleged omission to state in any
Registration Statement, Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, or any Application of a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating, defending against or appearing as
a third-party witness in connection with any such loss, claim, damage, liability
or action; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Registration Statement, Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or any
Application in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representative expressly
for use therein (which information is solely as set forth in Section 1(c)
hereof). The Company will not, without the prior written consent of the
Representative, which shall not be unreasonably withheld, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding (or related cause of action or portion thereof) in
respect of which indemnification may be sought hereunder (whether or not any
Underwriter is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of each
Underwriter from all liability arising out of such claim, action, suit or
proceeding (or related cause of action or portion thereof).
(b) The Company agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls the Underwriters within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act
(collectively the "Underwriting Entities") against any and all losses, claims,
damages or liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by the failure of any Underwriter to pay for and
accept delivery of the Shares which, immediately following the date of this
Agreement, were subject to a properly confirmed agreement to purchase; provided
that the Company shall not be responsible under this subsection for any losses,
claims, damages or liabilities (or expenses relating thereto) that
30
are finally judicially determined to have resulted from the bad faith or gross
negligence of the Underwriter Entities.
(c) Each Underwriter, severally but not jointly, agrees to indemnify
and hold harmless the Company against any losses, claims, damages or liabilities
to which the Company may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or any
Application or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representative
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under such subsection
(a), (b) or (c). In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party); provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party and such
indemnified party shall have the right to select separate counsel to defend such
action on behalf of such indemnified party. After such notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. Nothing in this
Section 8(d) shall preclude an indemnified party from participating at its own
expense in the defense of any such action so assumed by the indemnifying party.
31
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (d) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this subsection (e) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and employee of
the Underwriting Entities and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and
32
shall extend, upon the same terms and conditions, to each officer and director
of the Company and to each person, if any, who controls the Company within the
meaning of the Act or the Exchange Act.
9. Default of Underwriters.
(a) If any Underwriter defaults in its obligation to purchase Shares
at a Time of Delivery, the Representative may in its discretion arrange for the
Underwriters or another party or other parties to purchase such Shares on the
terms contained herein within thirty-six (36) hours after such default by any
Underwriter. In the event that, within the respective prescribed period, the
Representative notifies the Company that they have so arranged for the purchase
of such Shares, the Representative shall have the right to postpone a Time of
Delivery for a period of not more than seven (7) days in order to effect
whatever changes may thereby be made necessary in the Prospectus, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments to the Prospectus that in the Representative's opinion may thereby be
made necessary. The cost of preparing, printing and filing any such amendments
shall be paid for by the Underwriters. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by the Representative as
provided in subsection (a) above, if any, the aggregate number of such Shares
which remains not purchased does not exceed one-eleventh (1/11) of the aggregate
number of Shares to be purchased at such Time of Delivery, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the
number of Shares which such Underwriter agreed to purchase hereunder at such
Time of Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
10. Termination.
(a) This Agreement may be terminated in the sole discretion of the
Representative by notice to the Company given prior to the First Time of
Delivery or any Subsequent Time of Delivery, respectively, in the event that:
(i) Any condition to the obligations of the Underwriters set
forth in Section 7 hereof has not been satisfied; or
(ii) The Company shall have failed, refused or been unable to
deliver the Firm Shares or the Company shall have failed, refused or been unable
to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior to such Time of Delivery, in either
case other than by reason of a default by any of the Underwriters. If this
Agreement is terminated pursuant to this Section 10(a), the Company will
reimburse the Underwriters severally upon demand for all reasonable
out-of-pocket expenses (including counsel fees and disbursements) that shall
have been incurred by them in connection with the proposed purchase and sale of
33
the Shares. Any termination pursuant to this Section 10(a) shall be without
liability on the part of any Underwriter to the Company or on the part of the
Company to any Underwriter, except for expenses to be paid by the Company
pursuant to Section 6 hereof or reimbursed by the Company pursuant to this
Section 10(a) and except as to indemnification and contribution to the extent
provided in Section 8 hereof.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters as provided in Section
9(a), the aggregate number of such Shares which remains not purchased exceeds
one-eleventh (1/11) of the aggregate number of Shares to be purchased at such
Time of Delivery, then this Agreement (or, with respect to a Subsequent Time of
Delivery, the obligations of the Underwriters to purchase and of the Company to
sell the Option Shares) shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
11. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Company, its officers and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person referred to in
Section 8(f) or the Company, or any officer or director or controlling person of
the Company referred to in Section 8(f), and shall survive delivery of and
payment for the Shares. The respective agreements, covenants, indemnities and
other statements set forth in Sections 6 and 8 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
12. Notices. All communications hereunder shall be in writing and, if sent
to any of the Underwriters, shall be sufficient in all respects if mailed,
delivered or telecopied and confirmed in writing to Xxxxxx Xxxxxxxxxx Xxxxx LLC,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (Fax No. (000) 000-0000),
Attention: Xxx Junior, Principal (with a copy to Xxxxxxxx Xxxxxxxx, P.C., 0000
Xxxxxxx Xxxxx Xxxx, Xxxx Xxxx, XX 00000 (Fax No. (000) 000-0000) Attention:
Xxxxxxxx Xxxxx, Xx., Esquire); if to the Company shall be sufficient in all
respects if mailed, delivered or telecopied and confirmed in writing to BCB
Bancorp., Inc., 000-000 Xxxxxx X, Xxxxxxx, XX 00000 (Fax No. (000) 000-0000)
Attention: Xxxxxx Xxxxxxx, President and Chief Executive Officer (with a copy to
Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., 0000 Xxxxxxxxx Xxx., XX, Xxxxx 000,
Xxxxxxxxxx, XX 00000-0000 (Fax No. (000) 000-0000), Attention: Xxxx Xxxxxx,
Esquire).
13. Binding Effect. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 11 hereof, the officers, directors and employees and controlling
persons referred to therein and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No
34
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
14. Governing Law and Construction. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania
applicable to agreements made and performed entirely within the Commonwealth and
without giving effect to any provisions regarding conflict of laws. All
references herein to the knowledge of the Company shall be deemed to include the
knowledge of each of the Subsidiaries.
15. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, including by facsimile or
electronic signatures, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
16. Date of Subsequent Time of Delivery. If a Subsequent Time of Delivery
which occurs 30 days from the date hereof is a Saturday, Sunday or a day on
which the Nasdaq Stock Market is closed, such Subsequent Time of Delivery shall
be the next succeeding Business Day (as hereinafter defined).
17. Definition of Business Day. For purposes of this Agreement, "business
day" means any day on which the Nasdaq Stock Market is open for trading.
[Signatures Appear on the Following Page]
35
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us one of the counterparts hereof, and upon
the acceptance hereof by the Representative, on behalf of each of the
Underwriters, this letter will constitute a binding agreement among the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in the Agreement among Underwriters, a copy of which shall be submitted to
the Company for examination, upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
BCB BANCORP, INC.
By: ___________________________________________
Name: Xxxxxx Xxxxxxx
Title: President and Chief Executive Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above.
XXXXXX XXXXXXXXXX XXXXX LLC
By: ___________________________________
Name:
Title:
On behalf of each of the
Underwriters
36
SCHEDULE I
Total Number of Maximum Number of
Firm Shares to be Shares to be Purchased if
Underwriter Purchased Option Exercised
--------------------------- ----------------- -------------------------
Xxxxxx Xxxxxxxxxx Xxxxx LLC
Total 800,000 120,000
======= =======
37
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
1
BCB BANCORP, INC.
LOCK-UP AGREEMENT
September _____, 2005
XXXXXX XXXXXXXXXX XXXXX LLC
As Representative (the "Representative")
of the Several Underwriters Named in Schedule I Hereto
c/o Janney Xxxxxxxxxx Xxxxx LLC
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned understands that you, as Representative of the several
underwriters (the "Underwriters"), propose to enter into an underwriting
agreement (the "Underwriting Agreement") with BCB Bancorp, Inc. (the "Company")
providing for the public offering (the "Public Offering") by the Underwriters,
including yourself, of common stock of the Company (the "Common Stock").
In consideration of the Underwriters' Agreement to purchase and make the
Public Offering of the Common Stock, and for other good and valuable
consideration, receipt of which is hereby acknowledged, the undersigned hereby
agrees, for a period of 180 days after the First Time of Delivery, as such term
is defined in the Underwriting Agreement (the "Lock-Up Period"), not to sell,
offer to sell, solicit an offer to buy, contract to sell, encumber, distribute,
pledge, grant any option for the sale of, or otherwise transfer or dispose of,
directly or indirectly, in one or a series of transactions (collectively, a
"Disposition"), any shares of Common Stock or any securities convertible or
exercisable into or exchangeable for shares of Common Stock (collectively,
"Securities"), now owned or hereafter acquired by the undersigned or with
respect to which the undersigned has acquired or hereafter acquires the power of
disposition, without the prior written consent of the Representative. Prior to
the expiration of the Lock-Up Period, the undersigned agrees that it will not
announce or disclose any intention to do anything after the expiration of such
period which the undersigned is prohibited, as provided in the preceding
sentence, from doing during the Lock-Up Period.
The undersigned acknowledges and agrees that the restrictions above are
expressly agreed to preclude the holder of the Securities from engaging in any
hedging or other transaction which is designed to or reasonably expected to lead
to or result in a Disposition of Securities (or
A-1
the economic equivalent thereof) during the Lock-Up Period even if such
Securities would be disposed of by someone other than the undersigned. Such
prohibited hedging or other transactions would include, without limitation, any
short sale (whether or not against the box) or any purchase, sale or grant of
any right (including, without limitation, any put or call option) with respect
to any Securities or with respect to any security (other than a broad-based
market basket or index) that includes, relates to or derives any significant
part of its value from the Securities.
The undersigned hereby also agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent against the transfer of
the Securities held by the undersigned except in compliance with the Lock-Up
Agreement.
It is understood that, if the Underwriting Agreement is not executed, or
if the Underwriting Agreement shall terminate or be terminated prior to payment
for and delivery of the Common Stock the subject thereof, this Lock-Up Agreement
shall automatically terminate and be of no further force or effect.
This Lock-Up Agreement shall be governed by and construed in accordance
with the laws of the State of New Jersey (without giving effect to its conflict
of laws provisions).
Very truly yours,
Name:
A-2
